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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

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International Brotherhood of Electrical Workers, Local 1186, AFL-CIO (Union) and Navy Public Works Center, Pearl Harbor, Honolulu, Hawaii (Activity)

[ v04 p217 ] 04:0217(32)NG
The decision of the Authority follows:

4 FLRA No. 32
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, LOCAL 1186
(Union)
and
NAVY PUBLIC WORKS CENTER,
PEARL HARBOR, HONOLULU, HAWAII
(Activity)
Case No. O-NG-31
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
UNION PROPOSAL
ARTICLE 20, SECTION 1-- DISCIPLINARY ACTIONS
SUBJECT TO PROVISION OF RIGHTS OF UNION AND EMPLOYEE, DISCUSSIONS
THAT MAY LEAD TO
DISCIPLINARY ACTION WILL BE HELD BETWEEN A SUPERVISOR HAVING HAD
AUTHORITY TO PROPOSE THE
ACTION, THE EMPLOYEE CONCERNED, AND HIS STEWARD IF REQUESTED BY THE
EMPLOYEE. THE EMPLOYEE
HAS THE RIGHT TO SPEAK OR REMAIN SILENT OR REFUSE TO GIVE A WRITTEN
STATEMENT AND SHALL BE SO
INFORMED BY THE EMPLOYER AT THE OUTSET OF THE INQUIRY OR
INVESTIGATION.
QUESTION HERE BEFORE THE AUTHORITY
THE PRINCIPAL QUESTION IS WHETHER THE UNION'S PROPOSAL VIOLATES THE
RIGHT OF THE AGENCY TO DIRECT AND ASSIGN WORK TO ITS EMPLOYEES OR TAKE
DISCIPLINARY ACTION AGAINST THEM UNDER SECTION 7106(A)(2) OF THE
STATUTE, /1/ OR WHETHER THE PROPOSAL ESTABLISHES A NEGOTIABLE PROCEDURE
UNDER SECTION 7106(B)(2) OF THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL ESTABLISHES A NEGOTIABLE
PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10, AS AMENDED BY 45 FED.REG. 48,575(1980)), IT IS ORDERED THAT
THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING THE SUBJECT PROPOSAL. /3/
REASONS: THE UNION'S PROPOSAL PROVIDES, ESSENTIALLY, THAT WHERE A
SUPERVISOR WITH THE AUTHORITY TO PROPOSE DISCIPLINE IS HOLDING AN
INVESTIGATORY DISCUSSION WITH AN EMPLOYEE AND HIS UNION REPRESENTATIVE
(IF REQUESTED), WHICH DISCUSSION MAY LEAD TO DISCIPLINARY ACTION AGAINST
SUCH EMPLOYEE, THE LATTER MUST BE ADVISED BY MANAGEMENT AT THE START OF
THE DISCUSSION THAT HE MAY REMAIN SILENT AND GIVE NO WRITTEN STATEMENT.
THE AGENCY'S BASIC POSITION IS THAT THE UNION'S PROPOSAL IS OUTSIDE THE
DUTY TO BARGAIN BECAUSE IT WOULD DIRECTLY IMPAIR OR UNREASONABLY DELAY
MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO TAKE
DISCIPLINARY ACTION AGAINST EMPLOYEES. THE OFFICE OF PERSONNEL
MANAGEMENT (OPM), IN ITS BRIEF AMICUS CURIAE FILED PURSUANT TO
PERMISSION GRANTED BY THE AUTHORITY UNDER SEC. 2429.9 OF ITS RULES AND
REGULATIONS (5 CFR 2429.9), SUPPORTS THE AGENCY'S CONTENTION THAT THE
DISPUTED PROPOSAL CONFLICTS WITH MANAGEMENT'S RIGHT TO DISCIPLINE ITS
EMPLOYEES, ARGUING THAT AN EMPLOYEE'S FAILURE TO RESPOND DURING AN
INVESTIGATION CONSTITUTES INSUBORDINATION. /4/ OPM ADDITIONALLY
CONTENDS THAT THE UNION'S PROPOSAL WOULD VIOLATE MANAGEMENT'S RIGHT
UNDER SECTION 7106(A)(2) TO ASSIGN AND DIRECT THE WORK OF EMPLOYEES BY
ESTABLISHING THE RIGHT OF AN EMPLOYEE TO REMAIN SILENT DURING AN
INVESTIGATION CONCERNING THE PERFORMANCE OF ASSIGNED DUTIES, AND
SIMILARLY "WOULD VIOLATE MANAGEMENT'S RIGHT AND OBLIGATION TO PROTECT
THE PUBLIC INTEREST IN THE MAINTENANCE OF EFFECTIVE GOVERNMENT
FUNCTIONS," CITING AND RELYING UPON SECTION 7101 OF THE STATUTE /5/ AS
SUPPORT FOR SUCH CONTENTION. THE AGENCY AND OPM FURTHER CONTEND THAT
THE UNION'S PROPOSAL IS INCONSISTENT WITH A "GOVERNMENT-WIDE RULE OR
REGULATION" WITHIN THE MEANING OF SECTION 7117(A) OF THE STATUTE, MORE
SPECIFICALLY 5 CFR 5.3, /6/ AND THAT THE DUTY TO BARGAIN THEREFORE DOES
NOT EXTEND TO SUCH MATTER. HOWEVER, INASMUCH AS THE FOREGOING
REGULATION SPECIFICALLY APPLIES ONLY TO INQUIRIES CONDUCTED BY THE OPM
OR ITS AUTHORIZED REPRESENTATIVES "ARISING UNDER THE LAWS, RULES OR
REGULATIONS ADMINISTERED BY THE (OPM)," RATHER THAN TO OTHER DISCUSSIONS
HELD BY AGENCY MANAGEMENT AS CONTEMPLATED BY THE UNION'S PROPOSAL, THE
CITED REGULATION IS DEEMED INAPPOSITE TO THE INSTANT DISPUTE. IN
ADDITION, FOR THE REASONS STATED BELOW, THE RESPECTIVE CONTENTIONS BY
THE AGENCY AND OPM THAT THE PROPOSAL HEREIN IS NOT WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE CANNOT BE SUSTAINED.
SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A), VARIOUS
RIGHTS RESERVED TO AGENCY MANAGEMENT. SECTION 7106(B)(2), HOWEVER,
PROVIDES THAT THE ENUMERATION OF THE SPECIFIED MANAGEMENT RIGHTS IN
SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION OF PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN EXERCISING THOSE RIGHTS. THE LEGISLATIVE
HISTORY OF THE STATUTE, AS IT PERTAINS TO SUBSECTION (B)(2), REVEALS
THAT THE COMMITTEE ON CONFERENCE, IN ADOPTING THE BILL WHICH
SUBSEQUENTLY WAS ENACTED BY CONGRESS AND SIGNED INTO LAW BY THE
PRESIDENT, SPECIFICALLY REJECTED A PROVISION OF THE SENATE BILL (S.
2640) WHICH STATED THAT NEGOTIATION ON PROCEDURES SHOULD NOT
"UNREASONABLY DELAY" SO AS TO "NEGATE" THE EXERCISE OF MANAGEMENT'S
RESERVED RIGHTS. /7/ IT IS THEREFORE JUSTIFIABLE TO CONCLUDE THAT
CONGRESS DID NOT INTEND SUBSECTION (B)(2) TO PRECLUDE NEGOTIATION ON A
PROPOSAL MERELY BECAUSE IT MAY IMPOSE ON MANAGEMENT A REQUIREMENT WHICH
WOULD DELAY IMPLEMENTATION OF A PARTICULAR ACTION INVOLVING THE EXERCISE
OF A SPECIFIED MANAGEMENT RIGHT. RATHER, AS THE CONFERENCE REPORT
INDICATES, SUBSECTION (B)(2) IS INTENDED TO AUTHORIZE AN EXCLUSIVE
REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT
THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT
ALL. /8/
IN THE INSTANT CASE, WHILE THE AGENCY AND OPM CONTEND THAT THE
UNION'S PROPOSAL WOULD DIRECTLY IMPAIR AS WELL AS UNREASONABLY DELAY
MANAGEMENT'S RESERVED RIGHT UNDER SECTION 7106(A)(2)(A) TO "TAKE . . .
DISCIPLINARY ACTION AGAINST . . . EMPLOYEES," THERE IS NO INDICATION
THAT COMPLIANCE WITH THE DISPUTED PROPOSAL WOULD MAKE IT IMPOSSIBLE FOR
THE AGENCY TO IMPLEMENT SUCH DISCIPLINARY ACTIONS. INDEED, THE PROPOSAL
HEREIN DOES NOT DIRECTLY INVOLVE AGENCY MANAGEMENT'S RIGHT TO TAKE
DISCIPLINARY ACTION. RATHER, IT PROVIDES THAT WHERE MANAGEMENT CONDUCTS
AN INQUIRY OR INVESTIGATION INVOLVING A DISCUSSION WITH A BARGAINING
UNIT EMPLOYEE BEFORE DECIDING TO TAKE DISCIPLINARY ACTION, SUCH EMPLOYEE
FIRST MUST BE INFORMED OF A CONTRACTUALLY CREATED RIGHT TO REMAIN
SILENT. THAT IS, NOTHING IN THE UNION'S PROPOSAL WOULD PREVENT
MANAGEMENT FROM TAKING DISCIPLINARY ACTION AGAINST AN EMPLOYEE (WITH OR
WITHOUT DISCUSSIONS) BASED UPON INFORMATION DERIVED FROM SOURCES OTHER
THAN THE EMPLOYEE DIRECTLY INVOLVED. MOREOVER, AS PREVIOUSLY STATED,
INASMUCH AS THE UNION'S PROPOSAL WOULD CREATE A CONTRACTUAL RIGHT FOR
UNIT EMPLOYEES TO REMAIN SILENT DURING AN INVESTIGATION CONDUCTED BY
MANAGEMENT, IT IS UNNECESSARY TO REACH OR PASS UPON THE GENERAL QUESTION
RAISED BY OPM AS TO WHETHER OR UNDER WHAT CIRCUMSTANCES AN EMPLOYEE'S
REFUSAL TO RESPOND MIGHT OTHERWISE CONSTITUTE INSUBORDINATION UNDER THE
STATUTE. SIMILARLY, NOTHING IN THE UNION'S PROPOSAL WOULD PREVENT
MANAGEMENT FROM DIRECTING ITS EMPLOYEES AND ASSIGNING WORK TO THEM UNDER
SECTION 7106(A)(2) OF THE STATUTE, AS ASSERTED BY OPM IN ITS BRIEF
AMICUS CURIAE. CONTRARY TO OPM'S CONTENTION, MANAGEMENT WOULD NO MORE
BE RESTRICTED IN HOLDING EMPLOYEES ACCOUNTABLE FOR THE MANNER IN WHICH
WORK IS PERFORMED THAN IT WOULD BE IN DISCIPLINING EMPLOYEES FOR
IMPROPER PERFORMANCE OF THEIR WORK OR FOR ANY OTHER REASON. MOREOVER,
FOR THE REASONS SET FORTH ABOVE, IT HAS NOT BEEN DEMONSTRATED AND DOES
NOT OTHERWISE APPEAR FROM THE UNION'S PROPOSAL IS INCONSISTENT WITH THE
PUBLIC INTEREST OR "THE REQUIREMENT OF AN EFFECTIVE AND EFFICIENT
GOVERNMENT" AS STATED IN SECTION 7101 OF THE STATUTE (NOTE 5, SUPRA).
IT IS ASSERTED BY THE AGENCY AND OPM, HOWEVER, THAT SECTION
7114(A)(2)(B) OF THE STATUTE, /9/ WHILE ACCORDING AN EMPLOYEE THE RIGHT
TO HAVE A UNION REPRESENTATIVE AT AN INVESTIGATORY EXAMINATION CONDUCTED
BY MANAGEMENT, DOES NOT GRANT SUCH EMPLOYEE THE RIGHT TO REMAIN SILENT
ONCE THE UNION REPRESENTATIVE IS PRESENT. THE FOREGOING ARGUMENT IS
MISPLACED, INASMUCH AS THE UNION'S PROPOSAL WOULD CREATE A CONTRACTUAL
RIGHT FOR UNIT EMPLOYEES TO REMAIN SILENT DURING INVESTIGATORY
EXAMINATIONS AND IS NOT BASED UPON THE INTERPRETATION AND APPLICATION OF
SECTION 7114(A)(2)(B) OF THE STATUTE. STATED OTHERWISE, ASSUMING
WITHOUT DECIDING THAT THE AGENCY AND OPM HAVE CORRECTLY INTERPRETED
SECTION 7114(A)(2)(B) OF THE STATUTE, NOTHING CONTAINED THEREIN WOULD
PRECLUDE THE UNION FROM SEEKING TO NEGOTIATE CERTAIN PROCEDURAL
PROTECTIONS FOR UNIT EMPLOYEES BEYOND THOSE CREATED BY STATUTE.
SIMILARLY MISPLACED IS THE AGENCY'S RELIANCE UPON SEVERAL COURT
DECISIONS INVOLVING THE CONSTITUTIONALITY OF DISCHARGING PUBLIC
EMPLOYEES WHO REFUSE TO ANSWER PERTINENT QUESTIONS CONCERNING THEIR
OFFICIAL CONDUCT. /10/ THE CASES CITED BY THE AGENCY CONCERN THE
LIMITATIONS ON THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION,
AND PROVIDE GENERALLY THAT THE CONSTITUTION DOES NOT EXTEND PROTECTION
TO A PUBLIC EMPLOYEE WHO REFUSES TO ANSWER QUESTIONS NARROWLY DIRECTED
TO THE PERFORMANCE OF HIS OFFICIAL DUTIES WHERE THE EMPLOYEE HAS
RECEIVED ASSURANCE THAT HIS ANSWERS WILL NOT BE USED IN ANY CRIMINAL
PROSECUTION. HOWEVER, THE CITED DECISIONS NEITHER ADDRESS NOR CONTROL
WHETHER AN EXCLUSIVE BARGAINING REPRESENTATIVE MAY NEGOTIATE AN
AGREEMENT CONSISTENT WITH THE STATUTE WHICH ESTABLISHES PROCEDURAL
RIGHTS FOR UNIT EMPLOYEES BY CONTRACT. FOR THE REASONS PREVIOUSLY
STATED, THE AUTHORITY CONCLUDES THAT THE PROPOSAL AT ISSUE HEREIN IS A
PROCEDURAL MATTER WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF
THE STATUTE.
ACCORDINGLY, THE PROPOSAL AT ISSUE IS WITHIN THE DUTY TO BARGAIN
UNDER SECTION 7106(B)(2) OF THE STATUTE, AND THE ALLEGATION THAT SUCH
PROPOSAL IS NOT OF THE STATUTE, AND THE ALLEGATION THAT SUCH PROPOSAL IS
NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT VIOLATES SECTION 7106(A)(2) OF
THE STATUTE MUST BE SET ASIDE.
ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7106(A)(2) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES;
(B) TO ASSIGN WORK . . .
/2/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
* * * *
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION . . .
/3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.
/4/ OPM CITES FEDERAL AVIATION ADMINISTRATION, ALASKA REGION, A/SLMR
NO. 1046(MAY 17, 1978), IN THIS REGARD, WHEREIN THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS, NOTING THE ABSENCE OF
EXCEPTIONS, ADOPTED WITHOUT COMMENT THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF AN ADMINISTRATIVE LAW JUDGE THAT THE FAA HAD NOT
VIOLATED EXECUTIVE ORDER 11491, AS AMENDED, DURING THE COURSE OF
INVESTIGATING THE CAUSES OF AN AIR CRASH, BY THREATENING TO DISCIPLINE
AIR TRAFFIC CONTROLLERS WHO REFUSED TO MAKE WRITTEN STATEMENTS AS
REQUIRED BY THE FAA HANDBOOK.
/5/ SECTION 7101 OF THE STATUTE PROVIDES:
SEC. 7101. FINDINGS AND PURPOSE
(A) THE CONGRESS FINDS THAT--
(1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
THE STATUTORY
PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
COLLECTIVELY, AND PARTICIPATE
THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH
AFFECT THEM--
(A) SAFEGUARDS THE PUBLIC INTEREST,
(B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, AND
(C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
BETWEEN EMPLOYEES AND
THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT; AND
(2) THE PUBLIC INTEREST DEMANDS THE HIGHEST STANDARDS OF EMPLOYEE
PERFORMANCE AND THE
CONTINUED DEVELOPMENT AND IMPLEMENTATION OF MODERN AND PROGRESSIVE
WORK PRACTICES TO
FACILITATE AND IMPROVE EMPLOYEE PERFORMANCE AND THE EFFICIENT
ACCOMPLISHMENT OF THE OPERATIONS
OF THE GOVERNMENT.
THEREFORE, LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
SERVICE ARE IN THE PUBLIC INTEREST.
(B) IT IS THE PURPOSE OF THIS CHAPTER TO PRESCRIBE CERTAIN RIGHTS AND
OBLIGATIONS OF THE
EMPLOYEES OF THE FEDERAL GOVERNMENT AND TO ESTABLISH PROCEDURES WHICH
ARE DESIGNED TO MEET THE
SPECIAL REQUIREMENTS AND NEEDS OF THE GOVERNMENT. THE PROVISIONS OF
THIS CHAPTER SHOULD BE
INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
EFFECTIVE AND EFFICIENT
GOVERNMENT.
/6/ 5 CFR 5.3 PROVIDES AS FOLLOWS:
SECTION 5.3-- OFFICERS AND EMPLOYEES TO FURNISH TESTIMONY--
ALL OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH, AND APPLICANTS OR
ELIGIBLES FOR
POSITIONS THEREIN, SHALL GIVE TO THE (OFFICE OF PERSONNEL MANAGEMENT)
OR ITS AUTHORIZED
REPRESENTATIVES ALL INFORMATION AND TESTIMONY IN REGARD TO MATTERS
INQUIRED OF ARISING UNDER
THE LAWS, RULES OR REGULATIONS ADMINISTERED BY THE (OPM). WHENEVER
REQUIRED BY THE (OPM),
SUCH PERSONS SHALL SUBSCRIBE SUCH TESTIMONY AND MAKE OATH OR
AFFIRMATION THERETO BEFORE AN
OFFICER AUTHORIZED BY LAW TO ADMINISTER OATHS.
/7/ SECTION 7218 OF THE SENATE BILL PROVIDED AS FOLLOWS:
SEC. 7218. BASIC PROVISIONS OF AGREEMENTS
* * * *
(B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
PARTIES FROM NEGOTIATING--
(1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
AUTHORITY TO DECIDE OR ACT
IN MATTERS RESERVED UNDER SUCH SUBSECTION; OR
(2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
IMPACT OF MANAGEMENT'S
EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
SUCH SUBSECTION, EXCEPT
THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE EXERCISE BY
MANAGEMENT OF ITS
AUTHORITY TO DECIDE OR ACT, AND SUCH PROCEDURES AND ARRANGEMENTS
SHALL BE CONSISTENT WITH THE
PROVISIONS OF ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS
TITLE, AND SHALL NOT HAVE THE
EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
/8/ SEE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT OFFICE, 1 FLRA NO. 102(1979), AT
N. 9, AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA NO. 16(1979), CITING THE JOINT EXPLANATORY
STATEMENT OF THE COMMITTEE ON CONFERENCE, S. REP. NO. 95-1272, 95TH
CONG., 2ND SESS. 158(1978).
/9/ SECTION 7114(A)(2)(B) PROVIDES:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN
AGENCY SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
* * * *
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
/10/ THE AGENCY CITES GARDNER V. BRODERICK, 392 U.S. 273(1968);
UNIFORMED SANITATION MEN ASSOCIATION, INC. V. COMMISSIONER OF SANITATION
OF NEW YORK, 392 U.S. 280(1968); 426 F.2ND 619 (C.A. 2, 1970), CERT.
DENIED 406 U.S. 961(1972); AND KALKINES V. UNITED STATES, 473 F2D
1391(CT.CL. 1973).